342 F.

3d 60

UNITED STATES of America, Appellee,

v.
Nelson SANTANA, Defendant, Appellant.
No. 02-2697.

United States Court of Appeals, First Circuit.

Heard July 29, 2003.
Decided September 3, 2003.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge,
and BALDOCK,* Senior Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, Federal Defender Office,
District of New Hampshire, for appellant.
Mark E. Howard, Assistant United States Attorney, with whom Thomas
P. Colantuono, United States Attorney, and Samantha M. Jewett, Legal
Intern, were on brief, for appellee.
TORRUELLA, Circuit Judge.

Nelson Santana was convicted of conspiracy to distribute and to possess with

intent to distribute between one-half and five kilograms of cocaine. After
considering Santana's challenges, which were ably briefed and well argued, we
affirm.

I. Background Facts
2

In 1998, local, state, and federal law enforcement agencies began an

investigation of suspected cocaine and marijuana traffickers in southern New
Hampshire. They debriefed informants, used undercover agents to attempt to
purchase drugs, conducted physical surveillance, and reviewed telephone
records. In addition, beginning February 22, 2001, law enforcement agencies
conducted court authorized wire taps on four telephone numbers, including a
cellular telephone belonging to Alfred Nickerson.

Telephone calls between Nickerson and Santana were recorded on May 7 and
May 9, 2001. Based on those calls and other information gathered during their
investigation, law enforcement agents believed Santana regularly supplied
cocaine to Nickerson and that a drug transfer was going to take place May 9.

At about 10:30 a.m. on May 9, an agent with the Drug Enforcement

Administration ("DEA") saw Santana enter the apartment complex at 210
Brook Village Road in Nashua, New Hampshire, where Santana's ex-wife lives.
Santana left about 1:00 p.m., accompanied by an unidentified male. Santana
spoke briefly and shook hands with this man before driving away.

Also on May 9, investigators were watching Nickerson. Leaving his home at

about 9:05 a.m., he stopped at several Nashua businesses including R.J. Motor
Sports. This stop is significant because agents watched Nickerson leave R.J.
Motor Sports May 7 with a package. At trial, the government alleged that
Nickerson obtained marijuana from Roger Paget, the owner of R.J. Motor
Sports. The defense argued at trial that Nickerson's cocaine also came from
Paget.

On May 9, Nickerson left R.J. Motor Sports empty-handed. He then drove to

the Brook Village Road apartment complex, arriving at approximately 12:30
p.m. and leaving (alone) fifteen minutes later. The surveilling officer saw him
enter the complex, but could not identify which apartment, if any, he entered.

Believing that Nickerson and Santana made a drug transaction inside the Brook
Village Road complex, investigators ordered state troopers to stop Nickerson's
car. Nickerson was "clearly nervous"; the trooper ordered him out of the car to
ensure her safety. She then found what she believed to be marijuana in
Nickerson's car and arrested him. An inventory search of Nickerson's car
yielded approximately eight ounces of cocaine, four ounces of marijuana, a
digital scale, an address book, and more than one thousand dollars. After his
arrest, Nickerson agreed to become a government informant.

A grand jury indicted Santana on April 10, 2002, and he was arrested on April
11, 2002 and charged with conspiracy to distribute more than five kilograms of
cocaine between 1997 and May 2001. At Santana's trial, Nickerson testified
that Santana had been his long-time supplier of cocaine and that he purchased
cocaine from Santana up to and including the day of Nickerson's arrest May
9, 2001. Nickerson said that he and Santana had little social interaction and
mainly communicated about drugs. Nickerson also testified that he used and
sold marijuana, which he obtained from Paget, the owner of R.J. Motor Sports.

On September 24, 2002, a jury found Santana guilty of conspiring to possess

and possessing with intent to distribute between one-half and five kilograms of
cocaine. He was sentenced to 121 months imprisonment to be followed by four
years of supervised release and ordered to forfeit money, certain real property
and an automobile. This appeal followed.

II. Discussion
A. Motion to Suppress Wiretaps
10

An April 27, 2001, order permitting wiretapping of Nickerson's telephone

identified Santana as a potential interceptee.1 Conversations on that line
between Santana and Nickerson were recorded on May 7 and May 9, 2001.
Santana appeals the district court's denial of his motion to suppress the
evidence and his request for a hearing under Franks v. Delaware, 438 U.S. 154,
155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The government does not contend
that Santana lacks standing to seek suppression of the wiretap evidence.

11

Santana claims that the wiretap violated Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. 2510-2522 (2000) ("Title III")
the federal statute governing electronic surveillance because (1) probable
cause did not exist to support the wiretap and (2) there was no required showing
of necessity for the wiretap. He also asserts that a Franks hearing was
warranted because of material misrepresentations by the affiant.

12

First, Santana asserts that while the government had probable cause to suspect
Nickerson was committing or would commit a crime, it lacked probable cause
to identify Santana as involved in criminal activity and therefore had no right to
identify Santana as an interceptee. We review de novo the district court's
determination that the facts in the affidavit constituted probable cause. United
States v. Strother, 318 F.3d 64, 67 (1st Cir.2003). Any findings of fact are
reviewed for clear error. Id. Our inquiry is whether the affidavit "provided a
sufficient basis for a finding of probable cause," United States v. Scibelli, 549
F.2d 222, 226 (1st Cir.1977); that is, we must determine "if the facts set forth in
the application were minimally adequate to support the determination that was
made." United States v. Villarman-Oviedo, 325 F.3d 1, 9 (1st Cir.2003).
Probable cause exists when the affidavit demonstrates in some trustworthy
fashion the likelihood that an offense has been or is being committed. United
States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999).

13

The affidavit contains the following information about Santana: 2 that an

informant knew Santana was Nickerson's cocaine supplier for many years and
as recently as two months before the affidavit was made; that the informant
(correctly) knew that Santana had previously been arrested on drug charges and
that Santana's brother was in prison following a drug conviction; and that
several phone calls had been placed from Nickerson (the primary target of the
investigation and wiretap) to the cell phone of Santana's girlfriend and to
Santana's ex-wife, and that Santana was thought to use each of those phones.
We therefore find that there was a sufficient basis for the issuing judge to
determine that Santana was committing, had committed, or was about to
commit the listed drug-related crimes.
14

Second, Santana asserts that the government did not demonstrate necessity for
the wiretap. The necessity requirement under Title III requires that the
government's interception application include "a full and complete statement as
to whether or not other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried or to be too
dangerous." 18 U.S.C. 2518(1)(c). The application must "demonstrate that the
government has made a reasonable, good faith effort to run the gamut of normal
investigative procedures before resorting to means so intrusive as electronic
interception of telephone calls." United States v. London, 66 F.3d 1227, 1237
(1st Cir.1995). However, the government need not demonstrate that it
exhausted all investigative procedures. United States v. Lpez, 300 F.3d 46, 52
(1st Cir.2002). When reviewing the government's showing of necessity, our
role "is not to make a de novo determination of sufficiency as if [we] were [the
issuing judge], but to decide if the facts set forth in the application were
minimally adequate to support the determination that was made." Id. at 53
(quotation omitted); see also United States v. Ashley, 876 F.2d 1069, 1073 (1st
Cir.1989) ("The government affidavit is adequate if it satisfies the burden that it
indicate a `reasonable likelihood' that alternative techniques would fail to
expose the crime.").

15

We find that the government's application contained the required details

regarding its inability to pursue the criminal activity through less intrusive
means. The affidavit stated, among other things, that physical surveillance and
the use of pen register information had been employed; that no confidential
informants were available to purchase drugs; that not enough information was
known to seek a search warrant; and that garbage searches were not possible.
The affiant therefore stated that a wiretap was necessary to uncover the full
scope of the conspiracy, including conclusive proof of identity and information
as to how the drug sales were made. See Villarman-Oviedo, 325 F.3d at 9-10
(showing of necessity made under similar circumstanced). We find that the
affidavit does not fall below the standard of minimal adequacy. See Nelson-

Rodrguez, 319 F.3d at 33.

16

Finally, a Franks hearing is required "where the defendant makes a substantial

preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the finding of
probable cause." Franks, 438 U.S. at 155, 98 S.Ct. 2674. A district court's
determination that the requisite showing for a Franks hearing has not been
made is overturned only if clearly erroneous. United States v. Rivera-Rosario,
300 F.3d 1, 20 (1st Cir.2002).

17

Here, there was no clear error in the district court's denial of a Franks hearing.
The only error identified by Santana is a reference to the wrong apartment unit
number. The government submitted an affidavit that the error was, at most,
negligent, and Santana has no evidence to suggest that it was done knowingly
or intentionally. See United States v. Adams, 305 F.3d 30, 36 n. 1 (1st Cir.2002)
(noting that "[m]ere inaccuracies, even negligent ones, are not enough" to
warrant a Franks hearing). Santana asserts that the apartment listing was done
with reckless disregard for the truth because the surveilling officer was not the
affiant, and the affiant did not verify the apartment number. Failure to
investigate, however, does not evidence a reckless disregard for the truth.
United States v. Ranney, 298 F.3d 74, 78 (1st Cir.2002).

18

Moreover, even if Santana were able to meet the preliminary hurdle in seeking
a Franks hearing, he has not shown that absent the false information the
affidavit contained insufficient evidence to support a finding of probable cause.
As we explained above, the exact apartment unit number of Santana's ex-wife
was not necessary to demonstrate probable cause.

19

We hold that the affidavit supporting the application to intercept calls from
Nickerson's cellular phone to Santana showed probable cause, made the
required demonstration of necessity, and did not contain egregious
misrepresentations necessitating a Franks hearing. The district court properly
admitted evidence of the telephone calls between Santana and Nickerson.
B. Evidence of Prior Criminal Acts

20

Santana also challenges the district court's decision to allow introduction of a

prior drug conspiracy between him and Nickerson. We review the admission of
prior bad act evidence for abuse of discretion. United States v. Varoudakis, 233
F.3d 113, 118 (1st Cir.2000).

21

Santana was charged with participating in a conspiracy to distribute and to

possess with intent to distribute cocaine from sometime "in or about 1997" until
May 2001. At trial, however, Nickerson testified that his former drug supplier
introduced him to Santana around 1992, and he bought one-half to one ounce of
cocaine from Santana every week or two until some point in 1996. Nickerson
stated that Santana usually "fronted" him the cocaine. Nickerson said that he
stopped buying cocaine in 1996 and Santana told him to contact him in the
future if he wanted to buy drugs again. Nickerson further testified that he
approached Santana in 1997 and resumed purchasing cocaine from Santana.
Santana was charged and convicted for this second relationship.

22

Santana objected to Nickerson's testimony about their first drug conspiracy.

The district court gave a limiting instruction, informing the jury that it could
only consider Nickerson's testimony in deciding how the charged conspiracy or
a trust relationship was formed, how the conspiracy operated, the identity of
Santana, and Nickerson's credibility. Santana argues that any probative value of
the testimony was substantially outweighed by its prejudice and should not
have been admitted.

23

Evidence of prior bad acts is inadmissible to show bad character and

consequent propensity to commit crimes, but may be admitted if it satisfies a
two-part analysis: "First, the past incident must have some relevance other than
to show the defendant's propensity to commit the crime. Second, even if
specially relevant, the danger of prejudice cannot substantially outweigh the
probative value of the evidence." United States v. Agudelo, 988 F.2d 285, 287
(1st Cir.1993) (citations omitted); see also Fed.R.Evid. 403, 404(b).

24

Reviewing the evidence here and the limiting instruction given by the trial
judge, we find no abuse of discretion. It is proper to include evidence of prior
bad acts in conspiracy cases if they "explain the background, formation, and
development of the illegal relationship and, more specifically, to help the jury
understand the basis for the co-conspirators' relationship of mutual trust."
United States v. Escobar-de Jess, 187 F.3d 148, 169 (1st Cir.1999) (internal
citations omitted). Santana's counsel conceded at oral argument that the
evidence had "special" probative value. The question is whether its probative
value was substantially outweighed by the danger of unfair prejudice.

25

All of Nickerson's testimony, including the details of their drug dealings in the
early 1990's, was prejudicial to Santana; it was not an abuse of discretion,
though, to find that the prejudice did not substantially outweigh the testimony's
probative value. First, the trial court gave a limiting instruction. See United
States v. Vest, 842 F.2d 1319, 1327 (1st Cir.1988) (finding that prejudicial

effect can be reduced by issuing an appropriate limiting instruction). Second,

although we are concerned about the length of time between Santana and
Nickerson's first meeting and Santana's arrest, their early relationship was
similar to the charged conspiracy and explained how the later drug conspiracy
was formed. See United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir.1996)
("Probative value must be considered in light of the remoteness in time of the
other act and the degree of resemblance to the crime charged."). Finally, there
was other evidence regarding Santana's involvement in the drug conspiracy,
including surveillance evidence, recorded phone calls, and Nickerson's
testimony that he purchased cocaine from Santana up to and including May 9,
2001. Cf. United States v. Aguilar-Aranceta, 58 F.3d 796, 801 (1st Cir. 1995)
(holding district court abused its discretion in admitting testimony where the
prior conviction was the only evidence of knowing possession).
26

We have noted the difficulty of balancing probative value and prejudice in this
situation:

27

The more similar the prior bad act evidence is to the charged crime, the more
likely it is to be deemed relevant under 404(b). Yet the more the prior bad act
resembles the crime, the more likely it is that the jury will infer that a defendant
who committed the prior bad act would be likely to commit the crime charged.

28

Varoudakis, 233 F.3d at 123. While we might have weighed the prejudicial
effect and probative value differently, the district court did not abuse its
discretion in admitting Nickerson's testimony. See id. at 122 ("The district
court's determination on this issue merits great deference on appeal.").
C. Agent's Testimony

29

Finally, Santana contends that the district court erred in allowing certain expert
testimony from DEA Agent Jean Drouin. We review that evidentiary decision
for an abuse of discretion. United States v. Lpez-Lpez, 282 F.3d 1, 14 (1st
Cir.2002). The hallmark of abuse of discretion review is deference. See Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

30

Santana also appeals the district court's denial of his motion for a mistrial as a
result of Drouin's testimony. We review that decision only for a manifest abuse
of discretion, and "we will uphold the court's ruling unless the movant
demonstrates a clear showing of prejudice." Villarman-Oviedo, 325 F.3d at 14.

31

Agent Drouin was surveilling Nickerson on May 7, 2001, when Nickerson

entered R.J. Motor Sports and emerged carrying a bag containing a box-like
object with rounded corners. Shortly after being seen carrying the suspicious
bag, Nickerson placed a phone call to Ricky Rano, one of his customers,
stating, "Thank you in hand!" a call which investigators understood to
inform the customer that drugs were available. Investigators had information
that Paget (the owner of R.J. Motor Sports) supplied Nickerson with marijuana,
which he then sold to Rano. Drouin did not arrest Nickerson that day.
32

Nickerson was not arrested until May 9, 2001 the day he made a phone call
to Santana and allegedly met with Santana inside the Brook Village Road
apartment complex. When Nickerson was arrested, he had eight ounces of
cocaine in his car. The prosecution alleged that he received the cocaine from
Santana the day of his arrest. The defense, however, argued that the cocaine
could have come from Paget on May 7, when Nickerson carried a bag out of
R.J. Motor Sports.

33

Agent Drouin testified for the prosecution. When asked why he did not arrest
Nickerson on May 7, he responded that he "knew it was marijuana." Asked the
basis for his knowledge, Drouin answered that it was based on the
characteristics of the package, intercepted telephone calls, and controlled buys
from Rano, and added "we knew Alfred Nickerson was picking up what Ricky
Rano wanted, which was marijuana." Drouin also testified that when he
searched Nickerson's home on May 9, he smelled marijuana; he then
discovered a wrapping containing marijuana residue that was similar to the
wrapping on the package Nickerson carried on May 7.

34

Santana raises two distinct evidentiary appeals. First, he alleges that it was error
to allow testimony that Drouin could smell marijuana during the search of
Nickerson's home, stating "[i]t should have been excluded under Rule 701 of
the Rules of Evidence because it was not `rationally based on the perception of
the witness,' and because it was not helpful to the determination of a fact in
issue, as well as because it did not meet the criteria in Rule 702 and case law."

35

We find Santana's first evidentiary challenge meritless. It is axiomatic that a

witness may testify as to his personal knowledge here, what he smelled. Fed.
R.Evid. 602; see also Sheek v. Asia Badger, Inc., 235 F.3d 687, 695 (1st
Cir.2000). There was a sufficient foundation for this testimony because Drouin
testified that his job exposed him to marijuana, and another witness testified
that marijuana residue was found on the wrapper. See United States v. Paiva,
892 F.2d 148, 157 (1st Cir.1989) (holding that past experience and personal
knowledge and observation may qualify a lay witness to identify drugs). The
content of the wrapper was in issue because the defense wanted the jury to infer

that it could be cocaine, while the government alleged that it was marijuana.
Santana suggests for the first time on appeal that the testimony should have
been excluded under Rule 702. However, Drouin's testimony as to what he
smelled was based on his perception and therefore he was not required to
qualify as an expert under Rule 702. It was not an abuse of discretion to admit
Drouin's lay opinion testimony that he smelled marijuana during a search of
Nickerson's home. See id.
36

Next, Santana asserts that Drouin was not qualified to give either a lay or expert
opinion that he "knew" what was in the package Nickerson was carrying. The
defense objected and also moved for a mistrial, arguing that the evidence
irreparably prejudiced Santana's right to a fair trial because the theory of the
defense was that the package contained the cocaine that was later discovered in
Nickerson's car.

37

We find that any error in permitting Drouin to testify that he knew Nickerson
carried marijuana, and not cocaine, on May 7, was harmless. See United States
v. Scott, 270 F.3d 30, 46 (1st Cir.2001) (noting that harmless error applies to
evidentiary rulings). The defense was able to cross-examine Drouin to expose
perception difficulties including the fact that Drouin watched Nickerson from
across a busy street. Drouin also stated on cross-examination that he only
"knew" what was in the bag because of the ongoing investigation. Moreover,
Nickerson himself testified that he was carrying marijuana in the bag Drouin
saw him carrying out of R.J. Motor Sports that day. Any error in allowing
Drouin to testify that Nickerson had marijuana did not likely affect the outcome
and was therefore harmless. See United States v. Brown, 938 F.2d 1482, 1488
(1st Cir.1991) (finding erroneous admission of evidence harmless because it
was not crucial to the conviction). Finally, because Santana has not
demonstrated clear prejudice, we uphold the district court's denial of his motion
for a mistrial. See Villarman-Oviedo, 325 F.3d at 14.

III. Conclusion
38

Santana's conviction is affirmed.

Notes:
*

Of the Tenth Circuit, sitting by designation

The government may record conversations only between the target telephone
and identified interceptees

We note that the apartment number of Santana's ex-wife is incorrect in several

places in the affidavit. This error is not material because even when it is excised
from the affidavit, there is probable causeSee United States v. NelsonRodrguez, 319 F.3d 12, 34 (1st Cir. 2003).